Philip Fraser and Wife vs. Charles Willey, 2 Fla. 116

Hawicins, J ustice: This case was argued upon its merits at the last term of this Court and submitted to it for its decision, and the Court being equally divided judgment of affirmance was entered and the plaintiff in error now seeks to vacate that judgment and reinstate the case upon the following grounds to wit: First, That the Court being equally divided in opinion, no judgment could be entered affirming the judgment of the Court below. Second, that the justices of the Supreme Court did not file their opinions in writing in this case before judgment was pronounced.

These are important questions touching the practice of this Court, neither of which have before occurred in this State. Upon a very full examination of them however, they seem to present very little difficulty. The general rule is that he who makes a motion to reverse a judgment, and takes nothing by it, it is to be considered as denied, otherwise the consequence might be that the record would be here forever, and to give effect to that denial, a judgment of affirmance ought to be given. Bridge vs. Johnson, 5 Wendell 374. In the case of Iveson vs.

Moore, 1 Salkeld 17, the concluding part of the case is this: The Court being thus divided and there being a former rule to slay judgment, no judgment could be entered, but el per curiam if the Court had been divided on the first motion the plaintiff might have entered judgment, but now this rule must stand or be discharged, and discharged it cannot be, because the Court are equally divided. In 1 Ld.

Raymond 495, in a note the reporter says: “ In this case upon one of the former motions in arrest of judgment a rule was made that judgment should he arrested, end now the Court being divided the plaintiff could not have the rule discharged nor have judgment. But if on the former motion the Court had been divided judgment would have been entered for the plaintiff. These cases are therefore authority in favor of the correctness of the judgment in this case. In the Exchequer Chamber it is the practice upon a division to affirm the judgment. Deighton vs. Greenville.

And so is the practice in the House of Lords, 1 Shower 36. Cruise on Fines 222, Irish Edition 118. 2 Tidds’ Pr. 1236. A similar decision was made in the Court of Exchequer Chamber in Ireland, in the case of Warburton vs. Loveland and Ivie in 1828. 1 Hudson and Brooks, Reps. 725. The same practice has obtained in the Supreme Court of the United States. See the United States vs. Worrell, 2 Dall. 388. 11 Wheaton Reps. 59. The judgment of the Court below must be presumed to be right until the Court of dernier resort has decided otherwise. Bridge vs. Johnson, 5 Wendell 372. 3 Tidds Pr. 1178.

The same rule obtains in Maryland. 5 Harr, and Johnson, 284. It is a principle of the common law that when a motion is made in a Court of Justice and the Judges are equally divided on the question, the mover takes nothing by his motion. Foot vs. Tracey, 1 John. Reps. 54. Iveson vs. Moore, 1 Salk. 17. Chapman vs. Lamphere, 3 Mod. 156. 1 Shower 46, in note.

As to the second point, that the Court was bound in compliance with the statute to file written opinions even in case of a divided Court, we have come to the conclusion that it is not requisite or necessary and that it was not the intention of the Legislature that we should do so.

The statute is in these words, “ The Justices of the Supreme Court shall file their opinions in all cases decided in said Court, before judgment is pronounced, which shall be entered of record in the case.” The objects which the Legislature had in view in declaring that the decisions of this Court should be in writing, and afterwards printed in the shape of reports appear to be these, that the citizens of the State should have the benefit of the adjudications o'f their highest legal tribunal, upon all questions or cases brought before it.

The decisions of these questions involving as they inevitably must the rights of persons and property, including frequently the

interpretation of statutes, becoming in fact rules of action to nearly or quite the same extent as the statutes themselves, the importance of their promulgation must be at once apparent and readily appreciated.It seems clear, that the opinions of the justices as a Court are to be written and if there should not be a majority of the Court agreeing on one side of the question, there can be no decision. There must be something decided before the statute applies, and if the Court is divided can there be in the nature of things a decision ?

The Lexicographers tell us that the term “decided,” implies “ decision, something that is unequivocal, that puts an end to doubt.” ■ Suppose the Court stand opposed two to two, are there any doubts removed, is not the case left in the same situation in which it came up, leaving the questions of law involved in it as open questions and subject to future adjudication. Can the opinion of the Court be cited as authority in any future controversy ? Certainly not, because there is a perfect mathematical balance with no preponderance on either side.

It may be said that there is a sub modo decision, inasmuch as there is a judgment of the Court, but at most it would appear a decision by operation of law, and not by the Court, a majority being necessary to produce that result. Nor can we invoke the decision of the judge at nisiprius to be thrown in one scale or the other. The cause comes up to be tried de novo, with the facts already ascertained, the counsel better and more maturely prepared than in the Court below, and is to be decided by a tribunal possessing all the advantages of an Appellate Court.

The intention of the Legislature seems to have been to obtain the reasons which have guided and actuated the Court in coming to a decision, rather than those which might have operated to produce division and disagreement. Even if we are wrong in this view of the matter, the not having filed written opinions in this case, would not affect the validity of the judgment, for the statute is only directory. Statutes directing the mode of proceeding by public officers, are advisory and not essential to the validity of the proceedings themselves unless it be so expressed. 8 Vermont, R. 280. Corless vs. Corless, ib. 390.

People vs. Allen, 6 Wendell 480. Pond vs. Negus, 3 Mass. 230. Of course we have regarded the question as a purely legal one, having naught to do with inquiries based upon any supposed expediency. With these views, we are of opinion that the motion must be denied. Per Curiam.